Let voters punish politicians for lying

By KENNETH F. BUNTING, P-I ASSOCIATE PUBLISHER

Published 10:00 pm, Thursday, October 11, 2007

Perhaps the biggest lie is how last week's Washington Supreme Court ruling has been characterized.

It would be easy to conclude, based on rhetoric and media reports, that the state's high court was enthusiastically promoting, encouraging and sanctioning political lies. Of course, that is a gross oversimplification of an important 5-4 free-speech ruling that deserves a more thoughtful and supportive reception.

At issue is whether the state Public Disclosure Commission can issue fines and sanctions against political candidates for maliciously lying about their opponents.

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Four members of the high court say yes, embracing a malice standard that has defined actionable claims by public officials in civil defamation cases since 1964. But five others say no, holding that nothing could be more abhorrent to constitutional free speech rights than giving a bunch of political appointees the power to enforce their perception of truth on others in the political process.

But that's not the way it is being couched and discussed since the court handed down the ruling Oct. 4.

"State court backs lying in politics," a P-I headline shouted.

The Seattle Times called it "the 'right to lie' case" and carried a headline that read "Candidates lie -- What else is new?" even on an editorial page that admirably sided with the court majority.

A prominent Seattle-area blogger started the discussion with an old joke about a comedian and a politician who were seated together on a cross-country flight. "You're a comedian, eh? Tell me a joke," the politician says to his seatmate. "You're a politician, eh? Tell me a lie," the comedian replies.

Unfortunately, the comedic and the simplistic have dominated the discourse since the ruling was handed down. But neither the court's thin majority nor four dissenting justices, who had a dramatically different read on the policy and constitutional issues at stake, saw any of it as a laughing matter.

"The notion that the government, rather than the people, may be the final arbiter of truth in political debate is fundamentally at odds with the First Amendment," Justice Jim Johnson wrote in the majority opinion.

"There can be no doubt that false personal attacks are too common in political campaigns, with wide-ranging detrimental consequences," he added. "However, government censorship ... is not a constitutionally permitted remedy."

No doubt the passion and persuasiveness of Justice Barbara Madsen's well-articulated dissent is at least partly to blame for the cynical focus on the propensity for political candidates to lie about their opponents. Madsen criticized the majority opinion as an "invitation to lie with impunity," and said her fellow justices were misreading or ignoring numerous U.S. Supreme Court rulings on when false utterances lose constitutional speech protections.

"The impression left by the majority's rhetoric, that oppressive government regulation is at issue in this case, is simply wrong," Madsen wrote in the dissenting opinion. "The majority does no service to the people of Washington when it turns the First Amendment into a shield for the 'unscrupulous ... and skillful' liar."

Clearly, Madsen's skillfully written dissenting opinion resonated more with headline writers, reporters on deadline and commentators in search of the pithy sound bite.

But passion and eloquence aside, I think the majority got it right.

The Legislature may have been well meaning in trying to write a law that punishes political deceit, but this one tramples on a precious right.

If, as hinted, the PDC is considering an appeal to the U.S. Supreme Court, those with influence over members of that panel should let them know that would be viewed as a shameless power grab and a waste of taxpayer money.

Attorney General Rob McKenna, who as the state's lawyer, would have to bring such an appeal, should strongly counsel against it. Gov. Chris Gregoire, who appoints the five-member panel but can't remove members at will, should make clear that an appeal would be disappointing to her.

For those who think political speech that goes beyond the pale deserves punishment other than voter rejection, a concurring opinion by Chief Justice Gerry Alexander left a ray of hope and enough wiggle room for the Legislature to try again.

Personally, I'm fine with things where the ruling left them. But for those who disagree, a legislative do-over on the law that was struck down would be a cheaper and better alternative than trusting the issue to the Roberts-Scalia-Thomas court in "the other" Washington.